T 0195/14 (Switch command/HTC) 12-02-2019

1. Oral proceedings as video conference

The appellant requested that the oral proceedings be held as a video conference. It did not, however, provide any specific reason for its request. With its communication of 5 July 2018, the board pointed out that, under these circumstances, it could not grant the request, for the same reasons as those given in its earlier decision T 2068/14 (see in particular point 1.2.5, last three sentences). The appellant did not provide further arguments on this point.

2. Summary of the invention

The claimed invention relates to switching the software ("functional module") currently running on a device. The device includes a computer (see figure 2: processor 2300, storage 2500, input device 2100, display 2200) and specific hardware components (such as mobile phone, GPS or camera hardware, see [25]). Each functional module program "drives" a set of hardware components ("functional connecting configuration") for one or more functions (see [25], sixth sentence: "For example, the communication and image capturing capabilities can be integrated into one functional module, or the global positioning and media playback capabilities can be integrated into one functional module.").

For example, in order to switch from the mobile phone function to the camera function, the user enters an input command (via a touch-screen, a direction sensor, a voice reception unit or a hot key; see [35]-[39]; figure 4: S4010). Then it is determined whether the input command is a switch command ("determining whether to generate a switch command according to the input command" in the slightly unclear wording of the claims and of [34], fourth sentence; figure 4: S4030). If yes, the phone software (first functional module) is terminated (S4050), its operating state is stored (S4040; in order to be resumed the next time, [27]), the camera software (second functional module) is started (figure 4: S4060), and the corresponding hardware components are driven (S4070), possibly by a different (dedicated) operating system than that used during the phone function; see original claim 3 and the following three last sentences of [28]:

"In some embodiments, the hardware components can be driven via a common operating system when respective functional modules are executed. In some embodiments, the hardware components can be respectively driven via dedicated operating systems for respective functional modules. That is, the device 2000 may comprise several operating systems."

This passage is the only one in the application disclosing this use of different operating systems.

3. Inventiveness

3.1 The board will discuss the case with respect to the method (see for example claim 10 of the main request and figure 4). The same arguments hold for the corresponding device (claim 1).

3.2 The board agrees with the decision that the claimed subject-matter is not inventive, but uses a different reasoning.

3.3 The technical problem as disclosed in the description is to avoid issuing a second command in order to start the second functional module program, after having exited the first function module program via a first command, but to switch directly from the first functional module program to the second functional module program with one command only, i.e. without returning to the user interface (also called "specific menu", see 130 in figure 1) and selecting thereon the second functional module; see [3], first, second, eighth and ninth sentences; [4]; [32], second sentence; [40], first and second sentences. This conventional (i.e. prior art) mechanism is said to be inconvenient for the user ([4], second sentence). The application is said to allow "to efficiently and instinctively switch among the functional modules" (third sentence).

3.4 The solution consists in allowing the user to enter a command which triggers both, the terminating of the first functional module program and the starting of the second functional module program, at the same time.

3.5 However, providing a command which combines two former commands is not considered to involve an inventive step. It is an elementary idea of programming to combine commands so that they can be called together, and a programmer would find it obvious to combine the two mentioned commands into one in order to spare the user the effort of issuing them separately.

3.6 As differences between the independent claims of the main request and the prior art at hand (D1 and D2), the appealed decision (section 2.3.3) and the grounds of appeal (page 4, second sentence to end of second paragraph) identify the feature of using a different operating system for each of the two functional module programs. This feature was neither present in the original independent claims nor mentioned in the technical problem disclosed in the original description (see above).

3.7 The board considers this feature to be independent of the number of input commands to enter in order to trigger a program switching. Therefore, a second technical problem is formulated as follows: The use of two operating systems in one device solves the technical problem of integrating two computers with specific peripheral hardware (e.g. a mobile phone and a digital camera) into one computer (e.g. a multifunctional handheld device, [2]).

3.8 Since the peripheral hardware may be very different, the operating systems of the two devices may also be very different. The programmer would have two possibilities to integrate the operating systems of the two computers into one computer: either to program (or pick) a new operating system (capable of driving the different peripheral hardware) or to provide the two operating systems on the single computer. He or she would obviously select one of the possibilities according the circumstances. The description itself appears to suggest as much when its states ([28], sixth and seventh sentences) that "[i]n some embodiments, the hardware components can be driven via a common operating system when respective functional modules are executed. In some embodiments, the hardware components can be respectively driven via dedicated operating systems for respective functional modules."

In the board's opinion, no inventive step is needed to do so.

3.9 As to the differentiating feature of the invention being based on the context change of hardware devices, in contrast to a usual context switch of processes (see grounds of appeal, page 3, last sentence to page 4, first sentence), the board agrees with the appellant that the invention does not relate to a context switch of processes since the operating system is changed during the switch of the functional module programs.

3.10 However, driving the hardware devices which are needed for a specific program, such as the second functional module (see claim 10, end of step (b) and step (c)), is an obvious necessity so that the second functional module program can perform its function by using the hardware devices. Therefore, the skilled programmer would obviously program the software so that it drives the necessary hardware devices. Thus, this feature is not considered to contribute to an inventive step either.

3.11 As to the first auxiliary request, the additional feature in independent method claim 11 merely explicitly states that no specific menu is required for the program switching. This has already been considered in the discussion above (see points 3.3-3.5).

3.12 The additional feature in claim 11 of the second auxiliary request relates to enabling applications from an application list of the second application module when the second application module program runs. According to [40], third sentence, the feature reads "the applications ... are enabled to be called up and used during the execution of the second functional module according to the application list corresponding to the second functional module" (emphasis added). In [29], seventh sentence, examples are given, namely that an application for downloading maps can only be called up "by" the GPS functional module program, and an application for changing the setting of the display can be called up "by" any functional modules. The word "by" is interpreted as "during execution of" like in the preceding citation.

3.13 In its grounds of appeal, the appellant did not submit any argument as to why this additional feature would establish an inventive step. It is notorious that different programs offer different specific sets of functions: for example, a word processing program could offer "spell-checking" whereas a mathematical program would not. Such functions fall within what the invention calls "applications". Furthermore, it is obvious to enable the functions (i.e. applications) offered by a "functional module" along with it. Therefore, no inventive step is recognised in the second auxiliary request.

3.14 The independent claims of auxiliary requests 3-6 are not materially different from those of the main request and the second auxiliary request, respectively, which have been discussed above. More specifically, auxiliary requests 3, 5 and 6 merely clarify the use of multiple operating systems and driving the hardware components according to a first and a second functional connecting confi­guration. These features, however, were already contained in claim 10 of the main request (step (d)) and considered in that context. Auxiliary request 4 specifies that each "functional connecting configu­ration" also contains an associated "application list" which has been addressed in section 3.12 above, with respect to the second auxiliary request.

Therefore, the arguments above apply accordingly to these requests.

3.15 According to its letter dated 4 September 2018 (page 2, paragraph 5), the appellant takes the board as having argued (in section 7 of its communication dated 5 July 2018) that multiple operating systems were not disclosed in the independent claims. However, this section only stated that the relevance of multiple operating systems had not been mentioned in the originally claimed problem statement disclosed in the description (and summarised in section 4 of the communication; see also section 3.3 above). Having said that, the board does not doubt that the use of multiple operating systems is specified in the independent claims of the main request and auxiliary requests 3, 5 and 6, but notes that multiple operating systems are not mentioned in the independent claims of auxiliary requests 1, 2 and 4.

3.16 The board considers that the notorious knowledge in the art assumed in its argument under point 3.13 is so elementary that it does not require written evidence, which the appellant had requested (see its letter dated 4 September 2018, page 6, first paragraph).

3.17 For the same reason, the board does not consider necessary "a proper search" in the field of switching operating systems, as requested by the appellant (see page 6, first paragraph of the letter).

3.18 Thus, the subject-matter of the independent method claims of all requests is not inventive within the meaning of Article 56 EPC.